Market Triumphalism, Electoral Pathologies, and the Abiding Wisdom of First Amendment Access

51 Pages·2017·0.53 MB·English

by  Gregory P. Magarian

Working Paper Series
Villanova University Charles Widger School of Law Year 2007
Market Triumphalism, Electoral
Pathologies, and the Abiding Wisdom of
First Amendment Access Rights
Gregory P. Magarian
1567, [email protected]
ThispaperispostedatVillanovaUniversityCharlesWidgerSchoolofLawDigitalRepository.
http://digitalcommons.law.villanova.edu/wps/art87
10/31/2006 7:45:25 AM
MARKET TRIUMPHALISM, ELECTORAL PATHOLOGIES,
AND THE ABIDING WISDOM OF FIRST AMENDMENT
ACCESS RIGHTS

Gregory P. Magarian1
DRAFT July 1, 2007

Jerome Barron’s seminal writings that advocate a First Amend-
ment right of access to the media2 make a powerful case that constitu-
tional speech protection must actually yield dynamic, broad-based public
debate in order to ensure the vitality of our democratic society. Barron
posited that the First Amendment’s underlying purpose is to enable effec-
tive democratic debate, and he accordingly called on courts to invoke the
First Amendment to provide underfinanced and socially marginalized
speakers access to the infrastructure of public discourse. The mass me-
dia’s persistent incapacity to inform and guide public discussion of criti-
cal issues – most notably in recent years the decision to invade Iraq3 –
reaffirms that argument’s urgency. In the four decades since Barron’s
seminal writings on access rights appeared, however, the Supreme Court
and free speech theorists have largely ignored or scorned his prescription
for a First Amendment right of access to the media, along with similar
democracy-advancing arguments for strong First Amendment rights of
access to the political process. When the end toward which First
Amendment access rights would aim is so obviously important, and when
institutions that control access to public debate continue to suppress and
exclude critically important dissenting perspectives, why has the case for
access rights fallen so far out of favor?
This article defends and elaborates Barron’s argument that courts
can and should employ the First Amendment to advance equalization of
access to means of expression. Its primary goal is to explain and refute
the two principal intellectual critiques of that argument, which I call the
libertarian critique and the regulatory reform critique. Part I sets the
stage by assessing the state of Barron’s legacy. The first section empha-
sizes the elements of Barron’s case for access rights that fuel the two cri-
tiques: an egalitarian, instrumental theory of expressive freedom, opposed
by the libertarian critique; and the commitment to a judicially enforced

1 Professor of Law, Villanova University. Thanks to Mike Carroll and Chaim Saiman
for helpful comments on earlier drafts.
2 See JEROME A. BARRON, FREEDOM OF THE PRESS FOR WHOM? THE RIGHT OF ACCESS
TO MASS MEDIA (1973); Jerome A. Barron, An Emerging First Amendment Right of Access to
the Media?, 37 GEO. WASH. L. REV. 487 (1968) (hereinafter Barron, Emerging Right);
Jerome A. Barron, Access to the Press – A New First Amendment Right, 80 HARV. L. REV.
1641 (1967) (hereinafter Barron, New Right).
3 For an indictment of the U.S. media’s failures to facilitate effective public debate
before and during the early part of the Iraq War, see Gregory P. Magarian, The First
Amendment, The Public-Private Distinction, and Nongovernmental Suppression of Wartime
Political Debate, 73 GEO. WASH. L. REV. 101, 117-21 (2004) (hereinafter Magarian, Public-
Private Distinction).
10/31/2006 7:45:25 AM
2
constitutional requirement of broadly distributed expressive opportuni-
ties, opposed by the regulatory reform critique. The second section ac-
counts for the importance of these critiques by noting First Amendment
doctrine’s wholesale rejection of access rights. It also notes technologi-
cal optimists’ disdain for distributive accounts of expressive freedom and
explains why developments in information technology have not dimin-
ished Barron’s case for access rights.
The article then proceeds to its primary task: assessing the two
stores of intellectual capital that underwrite doctrinal rejection of access
rights. Part II critically analyzes the first of those positions, the libertar-
ian critique, which stands on a foundation of market triumphalism. The
first section presents the views of one group of libertarian thinkers, in-
cluding Charles Fried, Steven Gey, Jon McGinnis, and Christopher Yoo,
whom I classify as conservative libertarians. These critics openly es-
pouse a First Amendment theory that elevates the autonomy of speakers,
including powerful institutions, above all other concerns. They advocate
a regime in which the economic market dictates people’s opportunities to
participate in democratic discourse, and they assail any departure from
their laissez-faire vision as statist tyranny. The second section presents
the views of a second group of libertarian critics, including Robert Post,
Martin Redish, and Kathleen Sullivan, whom I classify as progressive
libertarians. These theorists sympathize with access rights advocates’
egalitarian concerns, and they offer thoughtful accounts of the First
Amendment that acknowledge the importance of effective public debate
for a healthy democratic system. My analysis, however, reveals that pro-
gressive libertarians fully embrace the conservative libertarians’ core
constitutional commitments: the autonomy-focused theory of expressive
freedom, the insistence on market distribution of expressive opportuni-
ties, and the rhetorical strategy of demonizing access rights advocates as
creeping tyrants. Part II concludes by setting forth the primary empirical,
theoretical, and normative reasons to reject the libertarians’ faith in unfet-
tered market control of democratic discourse.
Part III critically analyzes the other principal attack on access
rights, the regulatory reform critique. The first section describes the ar-
guments of regulatory reformers, including C. Edwin Baker, Jack Balkin,
and Mark Tushnet, against access rights. Regulatory reformers agree
with access rights advocates that public discourse needs to become more
egalitarian and informative. They also agree that government can and
should play a role in improving public discourse. They break with access
rights advocates, however, by arguing that courts should not invoke the
First Amendment to broaden media access. Regulatory reformers trust
the elected branches of government to implement access reforms, and
they exemplify the prevailing academic pessimism about the utility of
judicially enforced constitutional rights as a vehicle for progressive social
change. Accordingly, they urge courts to narrow the scope of the First
Amendment so that legislators and regulators may impose progressive
access rules. The second section takes issue with the regulatory reform
10/31/2006 7:45:25 AM
3
critique. I first contend that, just as the libertarians indulge an uncritical
faith in the market, regulatory reformers indulge an uncritical faith in the
elected branches of government. Our present electoral system suffers
from an unusual amalgam of electoral pathologies – some of which erode
elected officials’ accountability to the public generally, others of which
serve to perpetuate the exclusion of poor and socially marginalized peo-
ple from electoral politics – that doom any hope for legislative or regula-
tory efforts to broaden media access. I then contend that constitutional
rights provide a stronger theoretical basis, and courts a stronger institu-
tional vehicle, for broadening access to the means of expression.
This article endeavors to show that Barron’s brief for access
rights remains as persuasive today as it was 40 years ago. The libertarian
critique of access rights represents a reckless plunge into the market tri-
umphalism that has become a regrettably dominant feature of post-Cold
War political rhetoric. The regulatory reform critique places untenable
reliance on elected officials in a system rife with electoral pathologies
and undervalues judicial review in a field constitutional courts are well
positioned to navigate. Moving forward, advocates of access rights
should pick up Barron’s flag and consider how best to achieve the aims
he so eloquently articulated. This article’s conclusion suggests First
Amendment attacks on the very electoral pathologies that undermine the
regulatory reform critique as a first step toward broadening media access
and encouraging reformist impulses in the elected branches.

I. THE LEGACY OF BARRON’S CASE FOR ACCESS RIGHTS

Professor Barron’s writings form the cornerstone of a case for
First Amendment rights of access to the means of public debate. The first
section of this part describes Barron’s case for access rights, emphasizing
two key aspects of his argument: an underlying commitment to an egali-
tarian and instrumental theory of expressive freedom, and close attention
to the institutional benefits and hazards that various public and private
institutions present for the development of informative and inclusive pub-
lic debate. These theoretical and institutional elements of the case for
access rights provide the context for the article’s subsequent discussion of
the intellectual currents that have led present First Amendment doctrine
to reject access rights. The second section notes the Court’s steadfast
refusal to take access rights seriously in the years since Barron’s writings,
and it briefly explains why access rights remain crucial even in an era of
broadly accessible information technology.

A. Barron’s Theoretical Foundations and Institutional Insights

In advocating a First Amendment right of public access to the
10/31/2006 7:45:25 AM
4
media,4 Barron sought to constrain “the unanticipated power which the
marriage of technology and capital has placed in the relatively few hands
which dominate mass communication.”5 Employing economic and socio-
logical insights, he explained how the profit structures and communica-
tive dynamics of the mass media had created strong incentives for media
corporations to avoid presenting opinions on controversial issues.6 In
these circumstances, the conventional, “romantic view” of the First
Amendment as a shield for speakers’ autonomy had “perpetuated the lack
of legal interest in the availability to various interest groups of access to
means of communication.”7 Accordingly, Barron called on courts to in-
terpret the First Amendment as ensuring a positive right of access for
otherwise excluded speakers and ideas, to be applied with sensitivity to
the distinctive contexts of different communications media.8 By “access”
Barron meant not merely equal time for opposing opinions – a concept
whose limitations he well recognized – but open space for a full range of
subjects and viewpoints.9 Among the forms he saw access rights taking
were a public right to have media outlets present discussion of public
issues,10 a right for political speakers to purchase advertising space or
time on equal terms with other members of the general public,11 and a
right to have newspapers consider submissions for publication without
ideological bias.12
Barron’s call for access rights grew out of an egalitarian, instru-
mental theory of the First Amendment. He emphasized “the positive di-
mension of the first amendment: The first amendment must be read to
require opportunity for expression as well as protection for expression
once secured.”13 In the tradition of Justice Brandeis14 and Alexander
Meiklejohn, 15 Barron contended that the Constitution granted expressive

4 Barron’s emphasis on the word “media,” combined with his incisive analysis of the
print and broadcast media, should not obscure the breadth of his conception of access rights,
which extended to real property. See Barron, Emerging Right, supra note [x], at 492-94
(analyzing and praising Food Employees Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308
(1968)).
5 Barron, Emerging Right, supra note [x], at 506.
6 See Barron, New Right, supra note [x], at 1644-47. Barron’s view that the mass
media’s lack of ideology drives their failure to engage the public in political debate provides
an interesting contrast to contemporary arguments from both the left and right that media
outlets deliberately advance their own policy preferences.
7 Id. at 1642.
8 See id. at 1653 (advocating contextual analysis).
9 See BARRON, supra note [x], at 150-59 (exploring differences between “access” and
“fairness”).
10 See id. at 151.
11 See id. at 55-59 (proposing model statute).
12 See id. at 48.
13 Barron, Emerging Right, supra note [x], at 509.
14 See Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring), dis-
cussed in Barron, New Right, supra note [x], at 1648-49.
15 See ALEXANDER MEIKLEJOHN, POLITICAL FREEDOM (1948), discussed in Barron, New
Right, supra note [x], at 1653.
10/31/2006 7:45:25 AM
5
freedom not out of a romantic commitment to autonomy in the abstract
but rather because of our democratic system’s need for inclusive, thor-
ough debate about matters of public concern.16 He believed the equal
participation values central to democratic ideals should inform the ex-
pressive freedom meant to implement those ideals.17 The First Amend-
ment guaranteed not just a private right of powerful institutions to speak
but also “public rights in the communications process.”18 To the extent
the media impeded rather than aided in broadening participation in public
debate, the proper role of First Amendment doctrine was not to shield
media owners’ autonomy but rather to obligate them to distribute expres-
sive opportunities more broadly.19 Barron viewed access rights as an
alternative to left-wing calls for state suppression of right-wing ideas,20
and he emphasized that his inclusive vision encompassed speakers on the
right as well as the left.21 In particular, he found access rights inconsis-
tent with prohibitions on hate speech,22 instead advocating vigorous ef-
forts to open expressive opportunities for members of historically disad-
vantaged and marginalized communities.23
Barron portrayed access rights as serving two values that appear
inextricably linked in his conception of democracy: better informing the
public and broadening participation in public debate. First, he maintained
that the validity of a First Amendment access claim should turn on
“whether the material for which access is sought is indeed suppressed and
underrepresented.”24 Exposure to the broadest possible range of informa-
tion optimizes the effectiveness of the political community in influencing
and evaluating government decisions.25 Thus, Barron emphasized “[t]he
failures of existing media . . . to convey unorthodox, unpopular, and new

16 See Barron, New Right, supra note [x], at 1673 (stressing necessity of “adequate
opportunity for debate, for charge and countercharge”).
17 See id. at 1647 (criticizing romantic view of First Amendment for failing to recognize
“inequality in the power to communicate ideas”).
18 Id. at 1665.
19 Barron chose, in my view, an unhelpful illustration of judicial solicitude for media
power when he criticized New York Times v. Sullivan, 376 U.S. 254 (1964), as a judicial
license for powerful media to squelch debate by attacking reputations. See Barron, New
Right, supra note [x], at 1656-60; see also BARRON, supra note [x], at 7-12. Barron’s analy-
sis of Sullivan paid insufficient attention to the Court’s careful assessment of the power
dynamics between public officials and their critics, see Sullivan, 376 U.S. at 279-83, as well
as the particular power disparity between the Jim Crow-enforcing plaintiff and the civil
rights activists named as nonmedia defendants in the libel action. Given these factors,
Sullivan actually stands out as one of the Court’s most incisive defenses of public discourse
against private abridgement.
20 See BARRON, supra note [x], at 75-81 (criticizing Herbert Marcuse’s arguments for
“repressive tolerance”).
21 See id. at 85-89 (sympathetically considering Vice President Agnew’s charges that
liberal elitists were excluding conservative voices from the mass media).
22 See id. at 288-303.
23 See id. at 300.
24 Barron, New Right, supra note [x], at 1677.
25 See generally CASS R. SUNSTEIN, WHY SOCIETIES NEED DISSENT (2003).
10/31/2006 7:45:25 AM
6
ideas [and] to afford full and effective hearing for all points of view.”26
Second, Barron tied the force of access claims to “the degree to which the
petitioner seeking access represents a significant sector of the commu-
nity.”27 This principle would give members of socially and economically
marginalized groups opportunities to engage and influence public debate
without regard to social standing or economic means. By opening debate
to marginalized speakers, access rights would advance “the relationship
between a stable and vital political order and adequate access for protest
to the significant means of communication”28 and satisfy “the longing for
an information process which is truly participatory.”29
Central to Barron’s case for access rights was an attack on First
Amendment doctrine’s uncritical acceptance of a rigid public-private dis-
tinction. “Only the new media of communication can lay sentiments be-
fore the public,” he explained, “and it is they rather than government who
can most effectively abridge expression by nullifying the opportunity for
an idea to win acceptance.”30 The defining characteristic of the romantic
First Amendment doctrine he opposed was its “singular indifferen[ce] to
the reality and implications of nongovernmental obstructions to the
spread of political truth.”31 He cast powerful media institutions not as
legal persons with paramount expressive autonomy rights but as “non-
governing minorities”32 who abuse their control over important commu-
nicative infrastructure to stifle public debate. He charged any medium
that could support democratic discourse with the responsibility of doing
so.33 Accordingly, he contended that “[a]n access-oriented approach to
the first amendment implies affirmative obligation on government as well
as on the private sector and its concerns.”34 Even so, he opposed gov-
ernment surveillance of the press,35 and he conceived of the government’s
role in mandating access to privately owned media as strictly procedural,
disavowing any understanding of the First Amendment in which the gov-

26 Barron, New Right, supra note [x], at 1647.
27 Id. at 1677.
28 Barron, Emerging Right, supra note [x], at 488; see also Barron, New Right, supra
note [x], at 1650. In this respect, Barron’s analysis ties First Amendment access rights to
the familiar “social safety valve” argument for expressive freedom. See Thomas I. Emerson,
Toward a General Theory of the First Amendment, 72 YALE L.J. 877, 884-86 (explaining
value of First Amendment for preserving balance between stability and change).
29 Barron, Emerging Right, supra note [x], at 509.
30 Barron, New Right, supra note [x], at 1656; see also id. at 1669 (suggesting that
courts properly could treat newspapers, at least those with monopoly power, as having
“quasi-public status” for purposes of constitutional analysis).
31 Id. at 1643.
32 Id. at 1649.
33 See Barron, Emerging Right, supra note [x], at 494 (claiming that “any natural or
obvious forum in our society” bears “responsibilities for stimulating the communication of
ideas.”); see also Barron, New Right, supra note [x], at 1675 (contending that “the nature of
the communications process imposes quasi-public functions on these quasi-public instru-
mentalities”).
34 Barron, Emerging Right, supra note [x], at 494.
35 See BARRON, supra note [x], at 54.
10/31/2006 7:45:25 AM
7
ernment influenced the content of ideas.36 Access rights, in Barron’s con-
ception, would “build counterbalances into each sector.”37
A final, crucial but little noted feature of Barron’s case for access
rights is his primary faith in courts, rather than legislators or bureaucrats,
to broaden access to the media. Barron contended that the First Amend-
ment, given its instrumental purpose and egalitarian values, did not
merely permit but rather required broad access to the means of communi-
cation.38 He recognized that an access rights regime would present diffi-
cult legal questions, such as which points of view were absent from pub-
lic discourse, where and how to require access for dissident speakers, and
how much media attention to public controversies would adequately feed
public debate.39 However, he anticipated and adroitly answered concerns
about judicial competence to resolve access claims: the necessary analy-
sis, which would turn on “the public use and public need,” was “no more
complex a judicial task than is presently involved in analyzing the puz-
zles of apportionment, school desegregation and obscenity.”40 While
Barron endorsed legislative and regulatory reforms to expand access, par-
ticularly in the context of the electronic media,41 he believed “[i]t is by
the judicial process that we shall establish the contours for answers to
questions which a working right of access obviously presents.”42 Even in
areas of legislative action, such as right-of-reply statutes, Barron main-
tained that “[a] right of access law is far more likely to serve as an effec-
tive counterpoise to media power if administered in the courts.”43 Bar-
ron’s advocacy of a judicially enforced constitutional right of media ac-
cess, while substantively radical, was also procedurally conservative.
Acutely aware of the ignoble history of press licensing, he posited that –
at least in cases of such traditionally nonregulated media as newspapers –
courts would more fairly strike the proper balance between publishers’

36 See Barron, Emerging Right, supra note [x], at 507.
37 Id. at 509.
38 See BARRON, supra note [x], at 22-25 (advocating judicial creation of a right of access
to the press); see also Barron, New Right, supra note [x], at 1678 (positing that “it is open to
the courts to fashion a remedy for a right of access, at least in the most arbitrary cases,
independently of legislation”).
39 See Barron, Emerging Right, supra note [x], at 496 (summarizing legal questions
that access rights claims would present).
40 Barron, Emerging Right, supra note [x], at 495; see also BARRON, supra note [x], at
65 (identifying judicial independence and experience in enforcing First Amendment guaran-
tees as reasons to favor judicial administration of access rights).
41 See Barron, New Right, supra note [x], at 1674-76 (discussing sources of constitu-
tional authority for access rights legislation); see also Barron, Emerging Right, supra note
[x], at 500 (“the existing structure of broadcast regulation permits an understanding of the
problem of access which can be inclusive enough to reach failure to recognize or seek out
dominant public issues”).
42 Barron, Emerging Right, supra note [x], at 496. By the time of his 1973 book on
access rights, Barron realized that courts were refusing to implement access rights. See
BARRON, supra note [x], at 25.
43 BARRON, supra note [x], at 64.
10/31/2006 7:45:25 AM
8
editorial interests and the public’s access interests.44
In the two decades following publication of Barron’s work on ac-
cess rights, his arguments received forceful scholarly defense and elabo-
ration, notably from Owen Fiss45 and Cass Sunstein.46 Like the Vietnam
era that fostered Barron’s ideas, and the McCarthy era during which
Meiklejohn developed his First Amendment theory, the present War on
Terrorism would appear to cast the importance of access rights into par-
ticularly sharp relief.47 Unfortunately, First Amendment doctrine and
more recent scholarly commentary have almost uniformly rejected Bar-
ron’s First Amendment vision.

B. Access Rights, First Amendment Doctrine, and the Fallacy of
Technological Optimism

The Supreme Court’s rejection of access rights is a familiar chap-
ter in recent First Amendment history. Because I have told that story at
length elsewhere,48 I will not dwell on its details here. The Court in a
wide range of First Amendment disputes has foresworn any emphasis on
equalizing expressive access and enriching public debate, instead equat-
ing speech with property and thus insulating the economic market’s pre-
political distribution of expressive opportunities. Under present First
Amendment doctrine, mass media owners may refuse to sell advertising

44 See Barron, Emerging Right, supra note [x], at 495; see also Barron, New Right,
supra note [x], at 1667. Barron, perhaps mistakenly, valued the print media’s contributions
to public discourse above those of the electronic media. See Barron, Emerging Right, supra,
at 495. Even so, he avoided the trap of premising his case for access rights on technological
factors, emphasizing that economic consolidation in the print media posed as great an im-
pediment to the diversity of public discourse as technological limitations of the electronic
media. Compare Barron, New Right, supra, at 1666 with Red Lion Broad. Co. v. FCC, 395
U.S. 367, 387-89 (1969) (emphasizing broadcast spectrum scarcity in upholding FCC’s fair-
ness doctrine). His argument for access rights turned not on scarcity but on the societal
benefits of informative, inclusive debate and the social reality of inequalities in the distribu-
tion of expressive opportunities. See Barron, New Right, supra, at 1645 (emphasizing need
to focus on content rather than technology).
45 See OWEN M. FISS, LIBERALISM DIVIDED: FREEDOM OF SPEECH AND THE MANY USES
OF STATE POWER (1996) (hereinafter FISS, LIBERALISM DIVIDED); OWEN M. FISS, THE IRONY
OF FREE SPEECH (1996); Owen M. Fiss, State Activism and State Censorship, 100 YALE L.J.
2087 (1991) (hereinafter Fiss, State Activism); Owen M. Fiss, Why the State?, 100 HARV. L.
REV. 781 (1987) (hereinafter Fiss, Why the State?); Owen M. Fiss, Free Speech and Social
Structure, 71 IOWA L. REV. 1405 (1986) (hereinafter Fiss, Social Structure).
46 See CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH (1993)
(hereinafter SUNSTEIN, DEMOCRACY); Cass R. Sunstein, Free Speech Now, 59 U. CHI. L. REV.
255 (1992).
47 See Gregory P. Magarian, Substantive Due Process as a Source of Constitutional
Protection for Nonpolitical Speech, 90 MINN. L. REV. 247, 254-57 (2005) (discussing parallels
between period that gave rise to Meiklejon’s First Amendment theory and post-2001 period)
(hereinafter Magarian, Substantive Due Process).
48 For a detailed account of the Court’s expressive access decisions, see Gregory P.
Magarian, The Jurisprudence of Colliding First Amendment Interests: From the Dead End
of Neutrality to the Open Road of Participation Reinforcing Review, at ___-___ (forthcoming
2007) (hereinafter Magarian, Colliding Interests).
10/31/2006 7:45:25 AM
9
space to political speakers;49 owners of shopping malls may ban speakers
who seek the access to public audiences that the public square once pro-
vided;50 wealthy concerns face few constraints in crowding more mod-
estly funded voices out of electoral discourse;51 and copyright holders
face only minimal statutory constraints in barring incorporation of their
intellectual property into new creations.52 All of these rejections of ac-
cess rights reflect the Court’s disregard for the interests of socially mar-
ginalized, disaggregated, and underfinanced would-be speakers – the
bearers of access rights claims – and solicitude for the interests of power-
ful institutional speakers – the targets of access rights claims.53 Those
priorities, in turn, reflect the Court’s rejection of a free speech theory
focused on advancing the public’s interest in informative, inclusive de-
mocratic discourse in favor of a theory focused on protecting empowered
speakers’ autonomy against government interference.54
The Court has employed two primary doctrinal strategies to dis-
pense with access rights claims.55 In contexts such as the political adver-
tising and shopping mall cases,56 which squarely present the question
whether the First Amendment guarantees some measure of access to
means of expression, the Justices deny the existence of access rights as
anathema to the First Amendment. In other cases, where advocates suc-
ceed in portraying access reforms as matters of legislative or regulatory

49 Compare CBS, Inc. v. Democratic National Comm., 412 U.S. 94 (1973) (rejecting
political advertisers’ First Amendment claim of right to purchase advertising) with Red
Lion Broad. Co. v. FCC, 395 U.S. 367 (1969) (upholding statutorily authorized right of reply
requirement and emphasizing public’s interest in balanced information). For further dis-
cussion, see Magarian, Colliding Interests, supra note [x], at ___.
50 Compare Hudgens v. NLRB, 424 U.S. 507 (1976) (rejecting First Amendment right
of access to shopping center) with Amalgamated Food Employees v. Logan Valley Plaza, 391
U.S. 308 (1968) (announcing First Amendment right of access to shopping center). For
further discussion, see Magarian, Colliding Interests, supra note [x], at ___.
51 See Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam). For further discussion, see
Magarian, Colliding Interests, supra note [x], at ___.
52 See Eldred v. Ashcroft, 537 U.S. 186 (2003). For further discussion, see Magarian,
Colliding Interests, supra note [x], at ___.
53 See Gregory P. Magarian, The Pragmatic Populism of Justice Stevens’s Free Speech
Jurisprudence, 74 FORDHAM L. REV. 2201, 2204-06 (2006). The Court still shows occasional
concern for the interests of marginalized and underfinanced speakers, although Justice
Stevens appears to stand alone in making that concern a priority. See id. at 2212-27.
54 See Gregory P. Magarian, Regulating Political Parties Under a “Public Rights” First
Amendment, 44 WM. AND MARY L. REV. 1939, 1951-52 (2003) (discussing Court’s shift to-
ward autonomy-based First Amendment theory) (hereinafter Magarian, Political Parties).
55 In a broad sense, we might view free speech doctrine generally as a regime of access
rights, because the First Amendment requires people adversely affected by speech to bear
its costs. See generally Frederick Schauer, Uncoupling Free Speech, 92 COLUM. L. REV.
1321 (1992). This redistributive element of free speech law appears most clearly in the
public forum doctrine, to the extent the Court requires the public to dedicate its property to
the expressive uses of people without access to private expressive property. Theorists on all
sides of the access rights debate, however, appear to agree that judicially mandated access
to privately held expressive property would entail a distinctive change in present First
Amendment doctrine.
56 See supra notes ___-___ and accompanying text.